ARCHIVE FOR 2015 RUSSIAN
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Май 2015
CONTENT
FREE TRIBUNE
Yuri Tolstoy Problems of the Development of Civil Legislation and Their Solutions In 2008, the Russian President by his Decree commenced works on imporoving civil legislation.
Unfortunately, the pace of these works has gradually slowed down and their quality leaves a lot to be
desired. The article attempts to investigate why this has happened and outline how the situation could
be improved. The author of the article has been involved in the works on codification of civil legislation
in 1960s and 1990s, as well as in the current codification works. It goes without saying that the author
does not regard his ideas as indisputable.
Keywords:
reform of civil legislation, corporate law, property law
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Konstantin Sklovskiy Transaction and Possession Possession is not a right but a fact. As a fact, it should be considered as an action rather that a state.
The idea that possession is a certain right is largerly known and originates from the works of Savigny
who considered the act of transfer of possession as a transaction, in particular, because the transfer
of possession may be performed by symbols and jests. However, this view is questionable. Transfer
of possession is the act by which a thing goes under full control of the recipient, and the will of the
former possessor is eliminated. The physical possession of the thing (or the ability of the recipient
to establish such possession at his will) has a material utilitarian value which is the essence of the
act of transfer. On the other side, a transfer is an act that fundamentally does not have a material
utilitarian value and its essence is to establish an ideal (legal or moral) connections between people.
Some argue that possession is a right because it could be transferred through inheritance. However,
it is a mistake to think that only rights and obligations could be inherited and, therefore, this argument
does not work.
Keywords:
property law, possession, transfer of possession, transaction, juridical fact
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Vsevolod Baibak Loss of Chance as a Type of Damages The article deals with loss of a chance as a special type of damages which is unknown to Russian
law but quite well developed abroad. The main feature of this type of loss is special procedure of
calculation – in proportion to the chances to gain profit. The article contains comparative analysis
of main foreign and international instruments allowing compensation for loss of a chance. Author
analyses main conditions, which are necessary for recovery of loss of a chance. As regards Russian
law along with recent significant amendments to the rules of the Civil Code on contract damages, it is
submitted that compensation for loss of a chance is possible in principle.
Keywords:
damages, loss of chance
Andrey Panov Is There a Need for Revision of the Arbitration Rules of the ICAC at the CCI of Russia and If Yes What Changes Are Needed? The article discusses whether the time has come to revise the arbitration rules of the ICAC at the
CCI of Russia and what changes would be desirable. The author comes to the conclusion that the
ICAC Rules should be changed to allow the institution to keep up with the growing international
competition. The author further advocates extensive public consultations, involving all interested
parties, particularly the in-house lawyers to determine what changes should be made to the existing
Rules. The article further sets out a few areas where the changes would be desirable. In particular,
to lift the quality of the proceedings in ICAC to the international level it is suggested that the arbitral
tribunal should be required to communicate directly with the parties and to establish the framework as
well as the procedural timetable early in the case. Since the sophistication of the existing procedures
may not be always welcome by the users with smaller claims, it is suggested that the rules on fasttrack
arbitration should be introduced for such cases. The article further suggests certain changes
to the procedure of appointment of the tribunal. In particular, it is suggested that the mandatory
nomination of the substitute arbitrator and the appointment of the secretary to the tribunal should be
abandoned. Also, the article suggests that the default rule for appointment of the presiding arbitration
should be by agreement of the parties, rather than by the arbitral institution. This should ensure
greater involvement of experienced foreign arbitrators in the ICAC proceedings and would allow the
parties to select the tribunal which is most suitable for their case. Finally, the revision of the arbitration
fees schedule is suggested.
Keywords:
ICAC, international commercial arbitration, arbitral proceedings, fast-track procedure, arbitral tribunal
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Alexander Trunin Interpretation of Contract in the EU Member States This article describes main approaches to the interpretation of contract in the European Union
countries based on their legislation, scholarly sources and, in some cases, court practice. The article
focuses on various methods of the interpretation of contract and considers the role of subjective and
objective interpretation methods. Also, the author considers certain rules of the interpretation that are
used in different countries.
The analysis shows that the EU countries have different approaches to the interpretation of contract
focused both on subjective interpretation (intention of the parties) and objective interpretation
(understanding of the reasonable person). Though interpretation according to the common intention
of the parties prevails, there is a clear tendency to strike a balance between subjective and objective
interpretation. This balance is reached, in particular, by applying the principles of law (good faith,
reasonableness, etc.).
Keywords:
interpretation of contract, European Union, methods of interpretation, subjective interpretation, objective interpretation
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